The value of a jury trial.

• Author: Davison, Charles B.
• Position: Criminal law

Since beginning my stint as a columnist in this magazine, I have written about Crown prosecutors and about judges in various settings. I have noted the increasing role of complainants and victims in the criminal legal system. I want to now turn my attention to one of the unique features our system shares with Great Britain and the United States, and few other places: the concept of trial by jury.

The right to be judged by a jury of one's peers is one of the oldest protections of individual liberty, which is fundamental in our system of criminal law. The jury has, from its earliest days, been seen as something of a bulwark against the whims of the sovereign and the state. At first, jurors were chosen from the area where the alleged crime had happened specifically with the intention that they would know the accused and his or her accusers, and would then weigh the allegations and issues of guilt against their perceptions and impressions of the people involved. It is perhaps somewhat ironic then that the jury has evolved to the point where we now specifically do not want jurors who know the players or anything about the case.

The jury in a modern criminal trial must be independent and impartial, and must bring an open mind to the trial. Careful steps are taken to ensure that anyone who knows the accused, potential witnesses, the lawyers, or the judge is excluded from taking part in the proceedings. However, the role of the jury remains much the same as it was from the outset: to act as a brake on the system--to subject the allegations and proof offered by the Crown against an accused person to the careful, probing, critical review of 12 ordinary individuals who must unanimously agree that the accused has been shown beyond any reasonable doubt to be guilty. If any doubt remains about guilt, the jury must return a verdict of "not guilty". If all 12 members of the jury cannot agree on one verdict or the other, they must be discharged and the trial must be held again before an entirely new jury. The right to trial by jury is still considered important enough that in 1982 it was explicitly enshrined in the Charter of Rights and Freedoms for any charge in relation to which an accused could be imprisoned for five years or more.

In recent times, the value and purpose of a jury trial has come under attack, mainly by governments concerned about the costs and length of such proceedings. Having a trial before a judge without a jury is undoubtedly cheaper...